Earlier today Iran began large-scale war games to simulate a response to attacks on its nuclear sites.  But these games are hardly for fun, as the country intends to showcase its capability of defending against a strike from Israel.

Although in Canada we normally think of countries like Iran as the aggressor, the country is not without fear of Israel initiating military action against them.  Israeli officials have not ruled out the possibility, and there is a history of attacking Iraq in 1981 and more recently, Syria in 2007.

In response to the strikes against Iraq, the United Nations Security Council issued Resolution 487, stating,

Considering that, under the terms of Article 2, paragraph 4, of the Charter of the United Nations: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”,

1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;

2. Calls upon Israel to refrain in the future from any such acts or threats thereof;

3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;

4. Fully recognises the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;

5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;

6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;

7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution.

Iraq’s new government is seeking reparations from the 1981 attack.  Sadr MP, Nasser al-Rubaie, recently stated,

According to the international law Iraq has the right to receive compensation from Israel. We have called for a legislation to be passed in the parliament to oblige the Iraqi government to follow up the issue.

But it’s the attack against Syria that really raised the interest of the international law community. The reason is that both attacks were justified by Israel as necessary measures of self-defence, which although questionable by international law, were given limited credence by the Bush doctrine.

The 2002 National Security Strategy of the United States of America (NSS) states,

A. Summary of National Security Strategy 2002
… the first duty of the United States Government remains
what it always has been: to protect the American people and American interests … this duty obligates the government to anticipate and counter threats, using all elements of national power, before the threats can do grave damage. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. There are few greater threats than a terrorist attack with WMD.

To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively in exercising our inherent right of self-defense. The United States will not resort to force in all cases to preempt emerging threats. Our preference is that nonmilitary actions succeed. And no country should ever use preemption as a pretext for aggression.

The 2006 revision retains the ability to act preemptively.  But there is one important distinction between the U.S. and Israel that differentiates these policies.  The NSS is based on Article 51 of the U.N. Charter,

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The obvious distinction is that while the U.S. is a permanent member of the Security Council, Israel is not.  Israel cannot legitimately claim to be acting in self-defence when attacking pre-emptively, especially in light of Article 2(4),

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

Additionally, the effectiveness of either of these strikes are highly disputed by analysts, who are still frustrated by refusals by Israelis to provide information about them. After the Iraq invasion on the premise of WMDs, skepticism about pre-emptive strikes, especially after claims by Israeli military intelligence officer Shlomo Brom and Israeli MPs that Israel deliberately exaggerated reports about Iraqi capabilities in order to encourage an invasion.

The Nuremberg International Military Tribunal addressed the issue of pre-emptive strikes in United States v. Goering, 6 F.R.D. 69, 100-01 (1946).  The court rejected the Nazi claim that they had to invade Norway to avoid an Allied invasion, because there was no such threat imminent.

Mark A. Drumbl of the Washington and Lee University – School of Law points out in Self-Defense, Preemption, Fear: Iraq, and Beyond that the military response by Austria-Hungary to the assassination by the Serbian terrorist organization Black Hand of the Crown Prince Ferdinand and his wife was uniformly condemned by the international community.  It is also largely acknowledged as the primary cause of WWI.

Nicole Deller and John Burroughs explain in Jus ad Bellum: Law Regulating Resort to Force,

The right to anticipatory self-defense under customary law has never been unlimited. One generally recognized formulation dating from the mid-nineteenth century is that set forth in a letter from U.S. Secretary of State Daniel Webster to British Minister Lord Ashburton, that the necessity for action must be “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” Since then, and especially since World War II, capabilities to launch devastating attacks with little advance warning have improved dramatically. Nonetheless, scholars have continued to affirm Webster’s restraints on legitimate self-defense, recognizing their value in inhibiting resort to war. A recent edition of a leading treatise states that self-defense may justify use of force under the following conditions: an attack is immediately threatened; there is an urgent necessity for defensive action; there is no practicable alternative, particularly when another state or authority that legally could stop or prevent the infringement does not or cannot do so; and the use of force is limited to what is needed to prevent the infringement. Oppenheim’s International Law, 9th ed., 412.

But it’s a paper by Amin Ghanbari Amirhandeh, an LLM student at the University of Tehran, that gives the greatest pause.  He claims in Preemptive Attacks on Iran’s Nuclear Facilities?, that the Security Council would actually be required to assist Iran if attacked by Israel.

As Iran is a non-nuclear state, a military strike on a nuclear facility could still be considered a nuclear attack, given the resulting environmental damage.  He states,

In resolution 984, the Security Council “takes note with appreciation of the statements made by each of the nuclear-weapon States (S119951261, S119951262, S119951263, S119951264, S/19951265), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons”, and further “[w]elcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any nonnuclear- weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.

As the ICJ stressed in its historic opinion on legality of nuclear weapons
(1996), the Security Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited above, took note of those statements with appreciation. It also recognized “that the nuclear-weapon State permanent members of the Security Council will bring the matter immediately to the attention of the Council and seek Council action to provide, in accordance with the Charter, the necessary assistance to the State victim”; and welcomed the fact that “The intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non- Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used”.

Gesturing the concept of threat is enough for the Security Council in the present case, even if it is obvious that the five nuclear weapon states are
individually responsible for taking appropriate measures in order to assist Iran, to condemn any direct threat from Israel against Iranian nuclear installations.

Now that’s a consequence that would make Sarkozy’s description of an Israeli strike on Iran as an “absolute catastrophe” the understatement of the year.